Laws, Cases, and Other Resources

Defamation

This case addressed the balance between a public figure’s right to protect his reputation and the freedom of the press to report on matters of public concern. The New York Times published an advertisement that contained a number of factually inaccurate claims about the behavior of police in Montgomery, Alabama, during the Civil Rights movement. City Commissioner L.B. Sullivan sued for defamation in Alabama state court and won. The New York Times appealed to the Supreme Court, which reversed the state court decision and held that the Alabama law was “constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First . . . Amendment in a libel action brought by a public official against critics of his official conduct.” The Court considered the issue in light of the need for a robust public debate on important issues, and found that “[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about the clearer perception and livelier impression of truth, produced by its collision with error.“ Thus, the Court held that it is not enough for a defamatory statement merely to be false: a public official must also demonstrate that a defamatory statement was “made with actual malice – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Parody

In this case, the Reverend Jerry Falwell sued the Hustler Magazine over an fake ad it published that parodied an advertising campaign for the aperitif Campari. Campari ran a series of ads with the double entendre “Do you remember your first time?” accompanied by an interview with a celebrity discussing their first taste of Campari. Hustler’s parody mimicked the Campari ad design and used a picture of Falwell alongside a fake interview that implied, among other things, that Falwell had committed incest with his mother. Hustler noted that its advertisement was a parody in small text below the ad itself, as well as in the table of contents to the magazine. Falwell sued for libel and intentional infliction of emotional distress.

The lower courts rejected Falwell’s libel claim, finding that the parody could not reasonably be understood as reporting true facts. The Supreme Court then found that, when the subject of a published statement such as the Hustler parody is a public figure, the “actual malice” standard from libel cases applies in cases involving intentional infliction of emotional distress, as well. Falwell was not permitted to recover money damages from Hustler merely because the magazine published something “outrageous” about him – the Court held that the actual malice standard was necessary to provide “breathing space” for the First Amendment, and to prevent chilling speech about those in the public eye.

It’s important to note that this case was a suit between Falwell, the public figure, and Hustler, the speaker/publisher of the parody, about the effects of the parody on Falwell’s reputation. Campari did not sue to enforce any intellectual property rights over the form of its advertisements, even though Hustler copied the format, typeface, and tag line of the Campari ads quite precisely.

Privacy and Publicity

State Laws

Publicity rights are a matter of state law, and it is important to note how the law can vary among states, and what implications this may have for your art. Some states define publicity rights by statute and others rely on "common law" (the law developed by court decisions). Some states do not define publicity rights at all. For more information or to get an idea of what rules exist in your state, see rightofpublicity.com. Two states that deal with significant amounts of right-of-publicity litigation are California and New York. Both states have statutes that require an individual’s consent before using her name, likeness, or image for commercial purposes, but they differ in how and why the state protects the right.

California’s statute is based in property rights – the basic idea is that a person owns the right to use his own image, and can transfer or sell that right to other people, the way you would sell or transfer any other kind of personal property. The California statute prohibits people from using “another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services.” As a property right, California extends publicity rights to the estate of the deceased. As a result, even after an individual dies, the estate can still protect the individual’s image, likeness and personality. The statute, however, does not apply when the image or likeness is used for the “news, public affairs, or sports broadcast or account, or any political campaign.”

New York’s statute is similar to California’s, but is not quite as extensive. New York also requires an individual’s consent to use her name, portrait or picture for trade (commercial) purposes. But since the statute is based in privacy rights, they are not transferrable to an estate, and once a person dies, their rights to privacy cease to exist. Thus, a deceased individual’s image, likeness, and personality can be used for commercial purposes in New York.

Cases

Zacchini was a performer whose act consisted of being shot from a cannon into a net 200 feet away. A reporter for Scripps-Howard recorded his entire act without Zacchini’s consent and aired the performance on the nightly news. Zacchini sued, contending the airing of his act was “an unlawful appropriation of his act without his consent.” The lower courts disagreed: the trial court found in favor of Scripps; the Ohio Court of Appeals reversed in favor of Zacchini; and the Ohio Supreme Court reversed the court of appeals in favor of Scripps, finding the news was of public interest. Finally, on review, the Supreme Court reversed the Ohio Supreme Court, holding that the broadcast of the entire act eroded Zacchini’s commercial incentive and economic interests.

Zacchini is particularly relevant to postings on the Internet because it illustrates some limits on the reproduction of a person’s likeness. Even news organizations can be subject to publicity rights claims.

Comedy III productions owned all the rights to the comedy act the Three Stooges. Comedy III sued artist Gary Saderup because he sold a charcoal sketch of the Three Stooges as lithographed copies and on “t-shirts bearing reproductions of the sketch.” The case went all the way to the Supreme Court of California, which applied what is now known as the transformative effects test to determine whether the work in question deserves First-Amendment protection. The key, for the state supreme court, was to determine “whether a product containing a celebrity's likeness is so transformed that it has become primarily the defendant's own expression rather than the celebrity's likeness.” Applying this test to Saderup’s sketches, the lithographed copies, and the printed t-shirts, the Court stated that it found “no significant transformative or creative contribution.”

Comedy III is an important case because it introduced the transformative effects test, a test that some courts outside of California have also applied (see ETW v. Jireh below). Comedy III also demonstrates how subjective a court’s decision can be: the court simply stated the work was not transformative, but it did not provide any sort of clear test to define what degree of “creative contribution” will make a work transformative. As a result, artists need to be sure that, if they use any images of public figures in their art, their work contains substantial elements beyond the image.

An artist painted a picture celebrating Tiger Woods’s victory at the 1997 Masters Tournament. The painting placed Woods in a collage with the likeness of other past victors of the tournament. The artist then sold copies of the painting. Woods’s licensing company (ETW) sued contending the painting violated his publicity rights. The district court ruled in favor of the artist. The federal Court of Appeals affirmed the district court: holding the artist did not violate Woods’s publicity rights because the artists added enough of a creative component to transform the likeness.

ETW further illustrates the varied circumstances that can define cases about publicity rights. Specifically, ETW highlights the importance of the various elements that comprise the work in question. In ETW, the court looked at the creative content of the piece, finding (1) the added content outweighed any adverse effects on Woods’ market share for his image; (2) the additional elements in the piece (e.g. the clubhouse, leader board and caddy) added to Woods’s image such that it had protection under the First Amendment; and, (3) the painting satisfied a transformative effects test because it was a “collage of images in addition to Woods's image which are combined to describe, in artistic form, a historic event in sports history and to convey a message about the significance of Woods's achievement in that event.”

What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority. Technology expands the capacity to choose.